The Western Cape High Court has ruled in favour of the application by the Camps Bay and Clifton Ratepayers’ Association (CBCRA) to have reviewed and set aside, a decision by the City to remove title deed restrictions applicable to 96 Camps Bay Drive and approve plans for a block of four apartments.
In his report, delivered at a public meeting of the CBCRA on May 7, chairperson Chris Willemse, explained that the erf was zoned GR2, which allowed for multiple dwellings and taller buildings. The title deed restrictions, however, did not allow for this type of development.
Mr Willemse explained that in 2015 existing legislation had changed, with the enactment of the Spatial and Land Use Management Act (SPLUMA) at national level, Land Use Planning Act (LUPA) at provincial level and the Municipal Planning By-Law (MPB) at local level.
The Removal of Restrictions Act was repealed and planning decisions at local level devolved upon a Municipal Planning Tribunal (MPT). Mr Willemse accused the City, its planners and those in private practice, of exploiting the situation by entertaining applications that removed all relevant title deed restrictions from the deed, allowing single dwellings to be converted into multiple units.
The argument from the City and the MPT was that all case law protecting property rights fell away with the new laws and that they had total discretionary powers in deciding such matters. CBCRA disagreed.
Mr Willemse said the MPT had rejected all the objections from the CBCRA and surrounding neighbours, and approved the development. The CBCRA then lodged an appeal with Mayor Patricia de Lille, but she dismissed their appeal in July last year.
“By this stage, inexplicably, the developer was already busy with construction on site,” said Mr Willemse.
It was then that the CBCRA filed an application before the Western Cape High Court to review and set aside the MPT’s decision, the City’s dismissal of the appeal and the planning approval, on November 18 last year. This initial application by the CBCRA for an urgent interdict was set down for November 22, but was postponed at the request of the developer.
The matter was heard by the High Court on Monday June 18, with Judge Siraj Desai ruling in CBCRA’s favour.
Mr Willemse said the City had submitted to the court that the CBCRA should pay the City’s costs, on the basis that the CBCRA had insisted that the matter be heard rather than being settled, but the counsel for the City could not explain why it had failed to file its notice to abide by the decision of the court until late April 2018.
The City was ordered to pay CBCRA’s costs incurred in bringing the application and the developer, Schaefer Partnership, was ordered to pay its own costs.
“In our opinion, this is damning of the conduct of the City, as, usually, costs are borne jointly and severally by all parties on the losing side. It has been established by the court that the City is entirely responsible for the whole mess. Will they hold anyone accountable or will they simply continue with business as usual?” asked Mr Willemse.
The City’s mayoral committee member for transport and urban development, Brett Herron said: “All parties involved in this matter agreed that this decision should be set aside and the City notes the order relating to costs.”
The director of the Schaefer Partnership, Friedrich Schaefer, declined to comment on the matter.